Duryodhan Bhagwat Devkate and Others vs The State of Maharashtra

Vishnu Sahai, J.—Since all these matters arise out of the same set of facts and a common Judgment, we are disposing them off by one Judgment.

Eight persons namely (1) Madhukar Vishnu Devkate (2) Sadashive Vishnu Devkate (3) Vishnu Krishna Devkate (4) Vlthal Bhagwat Devkate (5) Haridas Namdeo Devkate (6) Gorakh Bhagwat Devkate (7) Duryodhan Bhagwat Devkate and (8) Tukaram Vishnu Devkate, were tried by the IInd Additional Sessions Judge, Solapur, in Sessions Case No. 85 of 1984, for offences punishable under Sections 147, 148, 302 read with 149, IPC in the alternative Section 302 read with 34 IPC and 324 read with 34 IPC. Vide Judgment and order dated 8-10-1984, the learned Judge was pleased to convict and sentence Duryodhan Bhagwat Devkate and Tukaram Vishnu Devkate in the manner set out hereinafter :-

(i) u/s 323 read with 34 IPC to three months R.I. and to pay a fine of Rs. 100/- each, in default to suffer R.I. for one month ; and

(ii) u/s 325 read with 34 IPC to three years R.I. and to pay a fine of Rs. 500/- each, in default to suffer R.I, for six months.

Their substantive sentences were ordered to run concurrently.

The said persons were acquitted on other charges. Remaining six persons, named above, were acquitted on all the charges.

Criminal Appeal No, 790 of 1984 has been preferred by Duryodhan Bhagwat Devkate and Tukaram Vishnu Devkate against their aforesaid convictions and sentences.

Criminal Appeal No. 967 of 1984 was preferred by the State of Maharashtra against acquittal of Duryodhan Bhagwat Devkate and Tukaram Vishnu Devkate on counts other than those on which the Trial Court found them guilty and against that of remaining persons namely Madhukar Vishnu Devkate, Sadashiv Vishnu Devkate, Haridas Namdeo Bichkule, and Gorakh Bhagwat Devkate on all the counts.

Criminal Revision Application No. 107 of 1985 has been preferred by the Original Complainant Shivaji Dnyandeo Devkate against all the 8 accused persons and it is prayed therein that the order of acquittal passed in their favour be set aside. Some other prayers, one of them being that the sentences of Duryodhan Bhagwat Devkate, and Tukaram Vishnu Devkate be enhanced, have also been made therein.

In short, the prosecution case runs as under :-

There was enmity between the deceased Jagannath Devkate, his sons Kisan Devkate P.W. 10, and Sampati Devkate, P.W. 11, residents of village Gar-Akole on the one side, accused Gorakh Devkate, Haridas Bichkule and Tukaram Devkate also resident of it, on the other side.

It is said that Gorakh had encroached upon the land of Jagannath. This was discovered about 15 days prior to the incident when the adjoining lands of Gorakh and Jagannath were measured. On this score, there was a quarrel between Gorakh and Jagannath. On 26.3.1984, Gram Panchayat elections at Gar-Akole took place and three to four days prior to them, accused Haridas, Gorakh and Tukaram had asked the deceased Jagannath to vote in the favour of their candidate. Since Jagannath had turned down their request, the said accused threatened to sec him after the elections. It is said that the remaining accused are related and connected with Haridas, Gorakh and Tukaram. Madhukar and Sadashiv are said to be real brothers of Tukaram and Vishnu is said to be their father. Vithal and Duryodhan are said to be real brother of Gorakh. Haridas is said to be brother-in-law of Gorakh. The said eight persons are also said to be residents of village Gar-Akole. On 28-3-1984, Kisan and Sampati were present with Rajendra Nikam in their field situated in village Gar-Akole. Sampati and Rajendra were ploughing one portion of the field and Kisan was releasing water in the other portion. At about 10 a.m. the deceased Jagannath came to the field and gave lunch to his sons and thereafter started going back towards the house on foot. About the same time, Sadhu Devkate P.W. 5 happened to pass his bullock cart by the car-road which passed through the field of Kisan and Sampati. It is said that Sadhu Devkate was little: ahead of Jagannath. At about 10.30 a.m. Jagannath noticed that accused Madhukar, Sadashiv, Vishnu, Vithal, Haridas, Gorakh, Duryodhan and Tukaram were sitting near the sugarcane crop in the field of Gorakh and had sticks, iron bars, hoe and gupti. He also saw that Jagannath and Duryodhan picked up iron bar, Madhukar a gupti, Gorakh a hoe and the remaining persons sticks and started following him. He ran but, they overtook him in Block No. 169/1, belonging to Sopan Valekar P.W. 6 and thereafter launched an assault on him as a result of which he fell down. It is said that Kisan and Sampti ran to his rescue. Kisan was assaulted by Duryodhan and Tukaram and Sampati by Duryodhan. It is further said that the accused continued to assault Jagannath even after he fell down.

Apart from Kisan and Sampati, this incident was seen by Sadu Devkate P.W. 5, Sopan Valekar P.W. 6, Rajendra Nikam P.W. 9 and Shivaji Devkate P.W. 12.

After assaulting Jagannath, Kisan and Sampati, the accused persons are said to have run away.

The F.I.R. of the incident was lodged same day at 1.30 p.m. at Police Station Temburni by Shivaji Devkate P.W. 12. It was recorded by PSI Lingappa Dasade P.W. 13 who on its basis, registered C.R. No. 23/1984 u/s 307 IPC etc.

The injuries of Kisan and Sampati were medically examined same day at 10.15 p.m. and 10.30 p.m. respectively at Primary Health Center Temburni by Dr. Mukund Deshpande P.W. 7.

On the person of Sampati, the doctor found a contusion on left leg on the posterior lateral side oval in shape 1 cm diameter. He also noted in the injury report that Sampati complained of pain at the seat of the contusion and on labial border of the left leg.

On the person of Kisan, the doctor found 3 contusions and noted that he complained of pains on right hand joint. Out of 3 contusions, one each was situate at posterior aspect of left and right leg and one on right forearm 4 cm below wrist joint.

In the opinion of Dr. Deshpande, the injuries of both the victims were caused within 12 hours and were attributable to a hard and blunt object like a stick or a iron bar.

It appears that sometimes after the lodging of the F.I.R. Jagannath succumbed to his injuries and thereupon the case was converted to one u/s 302 of IPC.

The autopsy on the corpse of Jagannath was conducted on 29.3.1984 by Dr. Bhiku Pawar P.W. 8. On external examination, Dr. Pawar found the following injuries :-

Swelling over left fore arm mid 1/3 region 6" x 4" Skin bluish, deformity present, communicated fractures of both radius and ulna present, at same site.

C.L.W. on left upper arm lower 1/3 region lateral aspect 1" x 1" bleeding present. Edges everted fracture of humorous lower 1/3rd region.

C.L.W. over mid l/3rd of right tibia 2'' x 2" x 1" bleeding present. Fracture of tibia at same site. Whole right calf is swollen skin bluish.

Fracture of both tibia and fibula right at lower 1/3rd region deformity present.

C.L.W. over left mid l/3rd of tibia, bleeding present, whole left calf is swollen. Skin bluish, fracture tibia at mid 1/3 region.

Fracture of left tibia and fibula at lower l/3rd region. Deformity and angulations present.

Contusion over left temporal region, 2" x 1" bluish colour.

Contusion over left gluteal region 6" x 4" bluish colour.

The said injuries were ante-mortem. In the opinion of Dr. Pawar, these injuries were attributable to a hard and blunt object like sticks and iron bars and were sufficient in the ordinary course of nature to cause death.

The case was investigated in the usual manner by PSI Narayan Chavan P.W. 14. During the course of the investigation, he arrested the accused persons. During interrogation, the accused Tukaram confessed that he had concealed weapons of assault namely sticks and iron bars beneath the fodder In his cattle shed in Gar-Akole and could get them recovered. Consequently, he recorded the said information under a panchanama Exhibit 19 and thereafter, along with police personnel, public panch Datlatraya Raval P.W. 3 and Tukaram proceeded to the farm house of Tukaram from where beneath some fodder, in his cattle-shed, he took out two iron bars and three sticks.

After the completion of investigation, PSI Narayan Chavan submitted a charge sheet against the accused persons.

The case was committed to the Court of Sessions in the usual manner. In the Trial Court, the accused persons were charged for offences mentioned in para 2. They pleaded not guilty and claimed to be tried. During trial, in all the prosecution examined 14 witnesses, 6 of them namely Sadhu Devkate, Sopan Valekar, Rajendra Nikam, Kisan Devkate, Sampati Devkate and Shivaji Devkate were examined as eyewitnesses.

If defence, in order to substantiate his plea of alibi, three witnesses were examined by Sadashiv Devkate, they being Hari Bhagwat, Mahadeo Maske and Ganpat Marie, D.Ws. 1, 2 and 3 respectively.

The trial Judge acquitted the accused Madhukar Devkate, Sadashiv Devkate, Vishnu Devkate, Haridas Bichkule, Vithal Devkate and Gorakh Devkate on all charges and acquitted Duryodhan Devkate and Tukaram Devkate, for offences other than 323 r/w 34 and 325 r/w 34 IPC.

As mentioned earlier, Criminal Appeal No. 790 of 1984 has been preferred by Duryodhan Devkate and Tukaram Devkate against their convictions and sentences.

Criminal Appeal No. 967 of 1984 has been preferred by the State of Maharashtra against the acquittal of Duryodhan Devkate and Tukaram Devkate for offences other than 323 r/w 34 and 325 r/w 35 IPC and against that of rest of the accused on all the counts.

Criminal Revision Application No. 107 of 1985 has been preferred by Shivaji Devkate (Original Complainant) against acquittal of the 8 accused persons and prayers analogous to those contained in Criminal Appeal No. 967 of 1984 have been made in it. Some other prayers, including enhancement of sentence of Duryodhan Devkate and Tukaram Devkate, have also been made therein.

We have heard the learned Counsel for the parties. We have also perused the depositions of the prosecution witnesses; the entire evidence on record; and the impugned Judgment. We are implicitly satisfied that Criminal Appeal No. 967 of 1984 deserves to be allowed, against respondents Sadashiv Devkate, Vishnu Devkate, Vithal Devkate, Haridas Bichkule, Duryodhan Devkate and Tukaram Devkate. We however, feel that it deserves to be dismissed against Madhukar Devkate, and Gorakh Devkate.

In our view, Criminal Appeal No. 790 of 1984 and Criminal Revision Application No. 107 of 1985 will stand disposed of in terms of our Judgment in Criminal Appeal No. 967 of 1984.

While reaching our conclusion, we have borne in mind that in an appeal against acquittal, this Court only interferes if the conclusions on facts are grossly unreasonable or the view of acquittal is vitiated by any illegality. We have no compunction in observing that the order of acquittal in respect of accused other than Madhukar Devkate and Gorakh Devkate is grossly unreasonable on facts. In our view, it is perverse.

In the instant case, the prosecution In all examined 6 eyewitnesses namely Sadhu Devkate, Sopan Valekar, Rajendra Nikam, Kisan Devkate, Sampti Devkate and Shivaji Devkate, P.Ws. 5, 6, 9, 10, 11 & 12 respectively.

We now propose considering their evidence individually.

We begin with that of Sadhu Devkate. He stated that on the date and time of the incident, while he was near the road, which passes through the land of Jagannath, on way from Alegaon - to Gar-Akole he found 8 accused persons following Jagannath, Duryodhan and Tukaram were armed with iron bars Madhukar with gupti, Gorakh with hoe and the remaining with sticks. All of them were chasing Jagannath who was running in Sopan Valekar''s field. In Sopan Valekar''s field, they over-powered him and assaulted him with their respective weapons. Sampati and Kisan ran to his rescue. The former was assaulted by Duryodhan and the latter by Tukaram, with iron bars. In the earlier part of our Judgment, we have referred to the injuries sustained by the deceased Jagannath, Kisan and Sampati and we find that they corroborate the manner of assault as given out by this witness. In para 19, the trial Judge has conceded that the land of this witness adjoins that of the deceased Jagannath; his name was mentioned in the F.I.R.; and there is no evidence to show that he bore any animus against the accused. Bearing these facts in mind, he has recorded a finding that his presence was quite likely at the place of the incident.

It is true that no injury either attributable to gupti or to a hoe was found on the corpse of the deceased but, that would not result in us, completely discarding the evidence of Sadhu Devkate for the principle "Falsus Uno Falsus Omnibus" is not a rule applicable to our country. At the most, in view of absence of gupti and hoe injuries, the benefit of doubt can be given to the accused Madhukar and Gorakh.

In our view, he is a reliable witness vis-a-vis accused other than Madhukar and Gorakh.

We also find that the evidence of Sopan Valekar P.W. 6 inspires confidence. Since the incident took place in his field, wherein he was working at the said time, he was a natural witness of it. His manner of assault in relation to the three victims namely Jagannath, Sampati and Kisan is identical to that of Sadhu. In para 20, the learned trial Judge has observed that he had no animus against the accused and his name is mentioned in the F.I.R. However, the learned trial Judge was pleased not to place reliance on his evidence because he stated that after Jagannath fell down, Kisan and Sampati tried to protect him by falling on his body, a thing which was not stated by the other witnesses. In our view, this was too small a ground for discarding his evidence in entirety.

We however feel that like Sadhu, it would not be safe to accept his statement vis-a-vis Madhukar and Gorakh.

We also find the presence of Rajendra Nikam at the place of the incident to be natural because he stated that he was assisting Kisan and Sampati in the ploughing operations in their field. The manner of assault as given out by him is on the same lines as that disclosed by Sadhu and Sopan and hence we are not adverting to it in detail. In para 21. the learned trial Judge has observed that there is nothing to suggest that he bore any animus against the accused and his presence was natural. He has also observed that his evidence will be required to be accepted with caution.

we feel that excepting the participation of Madhukar and Gorakh, it would be safe to rely on his evidence.

We also feel that it would be extremely safe to rely upon the testimony of the two injured witnesses Kisan P.W. 10 and Sampti P.W. 11, the sons of the deceased Jagannath, At the time of the incident, they were working in their fields along with Rajendra Nikam. They heard the cries of their father who was just going back home after giving them lunch and saw the accused chasing him. They also assign the same weapons to the accused and the same manner of assault to them as the preceding witnesses. It should be borne in mind that they are injured witnesses and their statement that Duryodhan and Tukaram assaulted them with iron bars is in conformity with the medical examination. In para 24 and 25, the learned trial Judge has given a finding that there is nothing in their evidence to discard their presence; they were named in the F.I.R.; and are injured witnesses. In our view, excepting the participation of accused Madhukar and Gorakh, their evidence inspires implicit confidence and can be safely acted upon.

We take up the evidence of the last eye-witness Shivaji Devkate P.W. 12, the informant. He was ploughing his land which was situated at a distance of 2 furlongs from the place of the incident. On hearing cries, he rushed to the place of the incident and saw the accused persons chasing Jagannath and thereafter assaulting him. When Kisan and Sampati ran to Jagannath''s rescue, Tukaram and Duryodhan assaulted them. The trial Judge has observed in para 27 that since his land was about 2 furlongs from the place of the incident, by the time he would have reached there, the assault would have been over. We are not inclined to agree with him. It should be remembered the prosecution case is that after the accused persons started chasing Jagannath, he raised cries and after being chased for some distance, he was overpowered by them in the field of Sopan P.W. 6. In our view, during the time the accused were chasing Jagannath, this witness would have covered a distance of two furlongs and rushed to the place of the incident and seen the incident. The trial Judge has also stated in the said para that he has not mentioned in the F.I.R. the weapons which the accused had and he was inimical to accused Gorakh. In this view of the matter, the trial Judge has observed that his evidence cannot be accepted in entirety.

We feel that his evidence is such that it should not be accepted without corroboration but, in as much as in this case, his evidence is corroborated by that of five other eye-witnesses, the same can also be taken into consideration against accused persons other than Madhukar and Gorakh.

In para 28, the trial Judge has given two main reasons for rejecting the testimony of the eye-witnesses. They being :-

(i) They stated that Jagannath was assaulted for about 7 to 8 minutes and if that was so, the external injuries on his persons would have been far more than 8; and

(ii) Although accused Madhukar is said to have assaulted Jagannath with a gupti, no gupti injury was found on his persons.

So far as the first reason is concerned, it is well known that rustic witnesses do not have a chronometric sense of time. There is evidence to show this in this case. One of the eye-witnesses Sopan Valekar P.W. 6 in his cross-examination stated that Jagannath was assaulted for an hour or two. To a Court question, he replied that he was beaten for a time which was required to eat up two breads.

In our view, the trial Judge erred in rejecting the testimony of the eye-witnesses on account of the said ground.

So far as second reason is concerned, we find that it is true that there is no gupti injury on the person of the deceased Jagannath and neither any injury attributable to a hoe on his person. But, in as much as the maxim "Falsus Uno Falsus Omnibus" is not a rule applicable to our country, it would be wrong to throw out the entire ocular account for that reason. At the best, accused Madhukar and Gorakh can be given the benefit.

We however, feel that for reasons given in para 31 of the impugned Judgment, the learned trial Judge was justified in rejecting the evidence of the three defence witnesses examined by accused Sadashiv to substantiate his plea of alibi.

For the said reasons, in our view, the trial Judge erred in not accepting the involvement of accused other than Madhukar and Gorakh in the crime.

We are inclined to agree with the trial Judge for the reasons stated by him in para 12, 13, 14 and 16 that the object was to give a good beating to Jagannath and not to commit his murder.

Not only do we find that the motive was paltry but also that out of the 8 injuries inflicted on the deceased, 6 were between hands and legs and the fractures related to them. We also find that there was just only injury on the head and it was not accompanied by any fracture.

We finally find that no injury attributable to gupti or hoe was found on the person of the deceased and he was not killed on the spot. In the said factual matrix, in our view, only an offence u/s 325 r/ w 149 1PC in respect of assault on the deceased would be made out.

In relation to the assault on Kisan and Sampati we feel that an offence u/s 323 r/w 149 IPC would be made out against accused other than Duryodhan and Tukaram also. It can be reasonably inferred that they had the knowledge contemplated by Section 149 IPC that sons of Jagannath who were working in the adjoining field could rush to the rescue of their father and could be beaten by some amongst the accused persons in their effort to rescue him and in that view of the matter along with Duryodhan and Tukaram they would also be liable with the aid of Section 149 for injuries inflicted on Kisan and Sampati.

We are only left with one question namely the quantum of sentence which should be awarded. We feel that considering the circumstance that the incident took place more than 14 years ago; at that time, most of the accused persons were between 20 to 26 years of age; there is nothing to indicate that any of them have criminal antecedents; and taking into account the nature and seat of the injuries sustained by the deceased and injured, the ends of justice would be amply satisfied if they are sentenced to undergo one years R.I. and a fine of Rs. 15,000/- and 1 1/2 years R.I. in default for the offence u/s 325 r/w 149 IPC and three months R.I. and a fine of Rs. 100/- in default one month R.I. for offence u/s 323 r/w 149 IPC.

In the result, these matters are disposed of thus :-

(A) Criminal Appeal No. 967 of 1984 is dismissed, vis-a-vis Madhukar Vishnu Devkate and Gorakh Bhagwat Devkate, They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged. It is however allowed vis-a-vis respondents Sadashiv Vishnu Devkate, Vishnu Krishna Devkate, Vithal Bhagwat Devkate, Haridas Namdeo Bichkule, Duryodhan Bhagwat Devkate, and Tukaram Vishnu Devkate. Each of the said persons is found guilty for offences u/s 325 r/w 149 IPC and 323 r/w 149 IPC. On the former count, they are sentenced to undergo one years R.I. and a fine of Rs. 15,000/- each, in default to undergo l 1/3 years R.I. On the latter count, they are directed to undergo 3 months R.I. and pay a fine of Rs. 100/- in default, to undergo 1 months R.I. They are on bail. They shall be taken into custody forthwith to serve out their sentences.

The fine shall be deposited by these persons within a period of four months from today in Trial Court and in case this is done, the Trial Court shall pay the whole of it as compensation to the widow of the deceased Jagannath Devkate and in case she is not alive or the deceased was not married, the whole of it in equal proportions as compensation to Kisan Rajendra Devkate P.W. 10 and Sampati Jagannath Devkate P.W. 11. As soon as the fine is deposited, the Trial Court shall take immediate steps to ensure the payment of compensation. The trial Court shall also accept the fine on production of certified copy of our Judgment.

(B) Criminal Appeal No. 790 of 1984 is disposed of in terms of our Judgment in Criminal Appeal No, 967 of 1984. Since, we have convicted and sentenced Duryodhan Bhagwat Devkate and Tukaram Vishnu Devkate in Criminal Appeal No. 967 of 1984, for offences punishable u/s 325 r/w 149 IPC and 323 r/w 149 IPC, we set aside their convictions and sentences, assailed in Criminal Appeal No. 790 of 1984, for offences u/s 325 r/w 34 and 323 r/w 34 IPC and direct that in case they have paid fine, under the said sections, it shall stand refunded to them.

(C) Criminal Revision Application No. 107 of 1985 and the Rule issued therein is disposed of in terms of our Judgment in Criminal Appeal No. 967 of 1984.

In case an application for a certified copy of this Judgment is made, the same shall be Issued within a period of four weeks from today.